Judge: John J. Kralik, Case: 24NNCV00873, Date: 2024-08-09 Tentative Ruling
Case Number: 24NNCV00873 Hearing Date: August 9, 2024 Dept: NCB
NorthCentral District
| naomi burks, Plaintiff, v. peter coeler dba p.a.c. properties, Defendant. | Case No.: 24NNCV00873 Hearing Date: August 9, 2024 [TENTATIVE] order RE: demurrer; motion to strike |
BACKGROUND
A.Allegations
Plaintiff Naomi Burks (in pro per,“Plaintiff”) alleges that she rented an apartment at 12255 Burbank Blvd., Unit103 in Valley Village from Defendant Peter Coeler dba P.A.C Properties(“Defendant”). Plaintiff alleges that Defendant owns and manages the subjectapartment building. Plaintiff allegesthat on March 18, 2022, she signed a one-year lease agreement to rent thesubject unit from Defendant. Plaintiffalleges that prior to signing the lease, she raised concerns about 10 terms inthe lease, including the bed bug addendum.She alleges that Defendant’s leasing manager stated that the languagewas standard in leases and that she should not be concerned. Plaintiff alleges that after she moved in, onApril 14, 2022, she began seeing roaches in her apartment. She notifiedDefendant no fewer than 6 separate times, and Defendant ignored hernotifications. On May 13, 2022,Defendant had a pest control agent treat the subject apartment, but Plaintiffalleges she continued to see roaches and notified Defendant on May 22, 2022 andJuly 28, 2022. In response to hercomplaints of roaches and gnats coming through a large gap between the wall andair conditioning unit, Defendant sent someone to seal the gap around her airconditioning unit, but ignored the roach problem. Plaintiff alleges that although Defendantsent pest control agents, none of the treatments were effective. She alleges that Defendant sent another agenton September 14, 2022, but the treatment was ineffective. Plaintiff alleges that Defendant sent anoffer on October 10, 2022 to allow Plaintiff to break her lease without penaltyor transfer to another available unit and on November 5, 2022, she notifiedDefendant that she would be breaking the lease and moving out.
The complaint, filed on April 9, 2024,alleges causes of action for: (1) negligence – breach of duty to provide andmaintain a habitable dwelling; (2) nuisance; (3) fraud by suppression; and (4)NIED.
On May 28, 2024, Plaintiff dismissed withprejudice the 4th cause of action for NIED as to allDefendants.
B.Motion on Calendar
On June 27, 2024, Defendant filed ademurrer and motion to strike portions of the complaint.
On July 23, 2024, Plaintiff filedopposition briefs.
On August 2, 2024, Defendant file replybriefs.
DISCUSSIONRE DEMURRER
Defendant demurs to the 2ndand 3rd causes of action in the complaint.
A.2nd cause of action for nuisance
The elements for a private nuisance claim are: (1) interference with the plaintiff’suse and enjoyment of his property; (2) the invasion of the plaintiff’sinterests in the use and enjoyment of the land must be substantial (i.e.,causes the plaintiff to suffer substantial actual damages); (3) theinterference with the protected interest must not only be substantial, but mustalso be unreasonable (i.e., it must be of such a nature, duration, or amount asto constitute unreasonable interference with the use and enjoyment of theland). (Mendez v. Rancho ValenciaResort Partners, LLC(2016) 3 Cal.App.5th 248, 262–263.) Unlike public nuisance (which is an interference withthe rights of the community at large), private nuisance is a civil wrong basedon disturbance of rights in land whereby the plaintiff must prove an injuryspecifically referable to the use and enjoyment of his or her land; however,this injury need not be different in kind from that suffered by the generalpublic. (Id. at 262.)
In the 2nd cause of action,Plaintiff alleges that when Defendant rented Plaintiff the apartment infestedwith roaches, and subsequently failed to remedy the infestation and ignored hermultiple complaints, Defendant created and/or maintained an actionablenuisance. (Compl., ¶38.) She alleges that Defendant had a pattern ofbusiness of only spot-treating the known roach infestation, blaming the tenantfor the infestation, and re-renting infested units to other unsuspectingtenants for higher rent. (Id.,¶39.) Plaintiff alleges that Defendantknew about the infestation prior to renting the unit to Plaintiff, which wasdespicable and carried out with a willful and conscious disregard for herrights and safety. (Id.,¶40.) Plaintiff alleges that shesuffered skin irritations/rashes, the unit was indecent and offensive to thesenses, and the infestation and ineffective treatment substantially obstructedher free use of the apartment and interfered with her enjoyment. (Id., ¶43.)
Defendant argues that Plaintiff has onlyalleged legal conclusions in paragraphs 1-38 of her complaint, has not allegedhow Defendant created a nuisance in the form of the roach infestation, and hasnot alleged that Defendant acted intentionally, unreasonably, negligently, orrecklessly by continuing to hire pest control agents to handle thesituation.
Taking the allegations of the complaint astrue, the Court finds that Plaintiff has alleged sufficient facts for a privatenuisance cause of action. Plaintiff hasalleged facts that Defendant created and/or maintained the nuisance conditionwith respect to the roaches by failing to treat and remedy the issue. She has alleged facts that her interests inthe use and enjoyment of her unit were invaded and that she sustained damagesin the form of skin irritations/rashes and inability to use her apartment. The allegations at the pleading stage aresufficient to provide notice to Defendant regarding the nuisance claim.
Defendant also argues that the 2ndcause of action is also duplicative of the 1st cause of action for negligence– breach of duty to provide and maintain a habitable dwelling. Each cause of action has distinctelements. The Court will allow both toproceed at this time and will not prematurely strike the 2nd causeof action, though the number of causes of action may be re-evaluated at thetime of jury selection.
As such, the demurrer to the 2ndcause of action is overruled.
B.3rd cause of actionfor fraud
To allege a cause of action for fraud, therequisite elements are: (1) a representation,usually of fact, which is false; (2) knowledge of its falsity; (3) intent to defraud; (4) justifiable reliance upon the misrepresentation;and (5) damage resulting from that justifiable reliance. (Stansfieldv. Starkey(1990) 220 Cal. App. 3d 59, 72-73.) This cause of action is a tort ofdeceit and the facts constituting each element must be alleged withparticularity; the claim cannot be saved by referring to the policy favoringliberal construction of pleadings.(Committee on Children's Television, Inc. v. General Foods Corp.(1983) 35 Cal.3d 197, 216.)Sincethe claim must be pleaded with particularity, the cause of action based onmisrepresentations must allege facts showing how, when, where, to whom, and bywhat means the misrepresentations were tendered. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.)
In the 3rd cause ofaction, Plaintiff alleges that Defendant’s leasing manager’s statementregarding the lack of a bed bug infestation while failing to mention a knownroach infestation, constituted fraudulent deceit. (Compl., ¶45.) Plaintiff alleges that Defendant was aware ofan ongoing roach issue, which was material to the unit’s habitability, butfailed to disclose the roach infestation in order to profit by Plaintiff’ssigning of the lease. (Id.,¶46.) Plaintiff alleges that shereasonably relied on the manager’s misleading representation, and she would nothave leased the unit had she known about the roach infestation. (Id.)
Defendantargues that Plaintiff has not alleged any facts regarding a misrepresentationabout a roach infestation.
Based onthe allegations of the complaint, Plaintiff has not alleged facts showing thatDefendant, through its agents, made representations about whether there was aroach infestation. At most, thecomplaint alleges that Plaintiff raised 10 (unidentified) issues withDefendant’s leasing department and that she had asked Defendant’s leasingmanager about a bed bug addendum.(Compl., ¶¶11-12.) She allegesthat the manager assured her not to worry about the bed bug addendum as therewere no indications of a bed bug infestation, which induced her to sign thelease. (Id., ¶¶12-14.)While she asked questions about the bed bug addendum, she did not askany questions about, nor hear representations regarding, a roach infestationfrom Defendant or its agents. Plaintiffhas not alleged specific facts regarding misrepresentations (or concealments)regarding any roach infestation.
As such,the demurrer to the 3rd cause of action is sustained with leave toamend.
DISCUSSIONRE MOTION TO STRIKE
Defendant moves to strike paragraphs12, 13, 14, 21, 40, 41, 42, 45, 46 (at page 11, lines 12-16), 47, and 48, andthe prayer for damages at Item 3.Defendant moves to strike Plaintiff’s request for punitive damages andrelated allegations.
A complaint including a request forpunitive damages must include allegations showing that the plaintiff isentitled to an award of punitive damages.(Clauson v. Superior Court(1998) 67 Cal.App.4th 1253,1255.)A claim for punitive damages cannot be pleaded generally andallegations that a defendant acted "with oppression, fraud andmalice" toward plaintiff are insufficient legal conclusions to show thatthe plaintiff is entitled to an award of punitive damages.(Brousseau v. Jarrett(1977) 73Cal.App.3d 864, 872.)Specific factual allegations are required tosupport a claim for punitive damages.(Id.)
Civil Code § 3294authorizes a plaintiff to obtain an award of punitive damages when there isclear and convincing evidence that the defendant engaged in malice, oppression,or fraud.Section 3294(c) defines the terms in the following manner:
(1)"Malice" means conduct which isintended by the defendant to cause injury to the plaintiff or despicableconduct which is carried on by the defendant with a willful and consciousdisregard of the rights or safety of others.
(2)"Oppression" means despicableconduct that subjects a person to cruel and unjust hardship in consciousdisregard of that person's rights.
(3)"Fraud" means an intentionalmisrepresentation, deceit, or concealment of a material fact known to thedefendant with the intention on the part of the defendant of thereby deprivinga person of property or legal rights or otherwise causing injury.
Further, when the punitive damages are sought againstan employer, Civil Code §3294(b) requires the plaintiff to establish the following:
(1)theemployer had advance knowledge of the unfitness of the employee and employedhim or her with a conscious disregard of the rights or safety of others orauthorized,
(2)theemployer ratified the wrongful conduct for which the damages are awarded, or
(3)theemployer was personally guilty of oppression, fraud, or malice.
The Court has reviewed the allegations ofthe complaint. The allegations forpunitive damages are currently lacking the particularity required to requestsuch damages. Plaintiff alleges in aconclusory fashion that Defendant knew of the roach infestation such that itsconduct was despicable and carried out with willful and conscious disregard forothers’ rights and safety. However, theallegations also show that when Plaintiff notified Defendant of the issues,Defendant responded by having pest control agents spray her unit on multipleoccasions and even offered to allow her to break her lease without penalty ortransfer units. While there may havebeen a roach infestation during Plaintiff’s residency at the subject unit, theallegations show that Defendant did not ignore her requests and insteadDefendant attempted to remedy the situation or provide her alternatives.
Next, Plaintiff has not alleged factsagainst Defendant’s agents and whether Defendant ratified its agents (alleged)wrongful conduct.
As such, the motion to strike theallegations for punitive damages is granted.Plaintiff may move at a later date to amend the complaint to allegefurther facts, if such facts appear and are sufficient to establish a right topunitive damages.
CONCLUSION ANDORDER
Defendant Peter Coeler dba P.A.CProperties’ demurrer to the 2nd cause of action is overruled. The demurrer to the 3rd cause ofaction is sustained with 20 days leave to amend.
Defendant Peter Coeler dba P.A.CProperties’ motion to strike is granted without leave to amend.
Defendant shall provide notice of thisorder.
DATED: August 9, 2024 ___________________________
JohnKralik
Judgeof the Superior Court
